Introduction:

The last several years and decades have seen a dramatic shift in perceptions of the Supreme Court of the United States — supposedly the highest level of the nation’s least partisan branch — as it has entered the fray as a political issue in and of itself. Particularly with the Dobbs v. Jackson Women’s Health Organization decision in June 2022 that overturned Roe v. Wade and Planned Parenthood v. Casey — the cases that had established and refined a constitutional right to an abortion — debates over the Supreme Court have raged. These debates were only inflamed this summer when the Court ruled in a closely followed case regarding former President Donald Trump that former presidents enjoy broad immunity from criminal prosecution.

In the century before Roe was overturned, SCOTUS often found itself at the center of national debate. These recent decisions, however, and Democratic Party frustration by perceived Republican intervention in judicial appointment standards over the last several Court vacancies, have revived a debate largely abandoned almost a century ago: on whether Democrats should add more justices to the Supreme Court (to “pack” or “stack” it) to secure more favorable verdicts. While both Gaughan and Granahan oppose court-packing, Gaughan will argue in its favor below, while Granahan will argue against it.

For (Gaughan):

Across the world, dictators and state executives aspiring to become them, have spent the last several years engaged in a process familiar in the grand scheme of history: crushing the court, rolling back civil rights and seizing power unchallenged. With some cases more successful than others, it’s a process easily observable from Hungary and Poland to Israel — with last year’s attempted judicial overhaul — as of late. Given this context, proponents of court-packing must fully realize the irony of the position in which this situation places us: that we must pack the court to save our freedom.

Decades of intensely politicized court decisions and appointments have brought us to where we are now, in the midst of this trying debate. And decades of democracy-threatening court decisions and appointments are why it must be had. Almost a quarter-century ago, five conservative-leaning justices, appointed exclusively by Republican presidents, ordered an end to a Florida election recount in the contested 2000 presidential election, resulting in a victory for President George W. Bush. Subsequent investigations later concluded that the result was ultimately (likely) correct, but SCOTUS’s intervention in the case was nonetheless astonishingly inappropriate, especially given how closely divided their opinion was: 5-4.

Decisions on whether to uphold President Obama’s signature legislative achievement, the Affordable Care Act (Obamacare), have been equally scrutinized, and at times equally as close. As a result, Republican presidents and senators, particularly outgoing Senate Minority Leader Mitch McConnell (R-KY), have carefully undermined the existing system to ensure Republican partisan dominion over the federal judiciary, particularly the Supreme Court.

Angered by McConnell’s filibusters of judicial appointees, the late Senate Majority Leader Harry Reid (D-NV) invoked the “nuclear option” in 2013, eliminating the filibuster for non-SCOTUS federal judges to allow the president and Senate to fill vacancies with just 51 votes. When Republicans took the Senate the next year, McConnell left the SCOTUS filibuster intact, and as the new Majority Leader, asserted his control of procedure to block a vote on Supreme Court nominee Merrick Garland throughout 2016. He later eliminated the SCOTUS filibuster himself for then-President Trump’s appointee Neil Gorsuch in 2017. And so it went. In 2018, Justice Brett Kavanaugh was confirmed in a 50-48 vote, with one abstention, against the backdrop of sexual assault allegations. Two years later, overturning their own 2016 arguments against confirming election year Supreme Court nominees, Senate Republicans confirmed Justice Amy Coney Barrett to fill the vacancy left by the late Justice Ruth Bader Ginsburg just days before the hotly contested 2020 election, which Trump went on to lose. In short, even without adding seats to the Court, Republicans have already packed it.

In the context of geopolitics, packing courts usually indicates a forthcoming rollback of individual and equal rights, and an expansion of executive powers. Today, the map reads: “You are here.” The 49-year right of reproductive freedom is gone across much of the country, returned to states to expand or destroy as they see fit. In that very decision, conservative Justice Clarence Thomas, whose nomination by Republican President George H.W. Bush amid sexual harassment allegations was equally as contested as those above, expressed interest in reevaluating other SCOTUS decisions that granted national rights to contraception and same-sex marriage in the U.S.

Meanwhile, the conservatives on the Supreme Court voted earlier this year to establish a broad standard of presidential immunity, which would protect future presidents from prosecution for any “official acts” while in office. When dissenting, liberal Justice Sonia Sotomayor argued that this could create a presidential power so broad that it could allow for the killing of political opponents by federal agencies. Chief Justice John Roberts provided nothing but a snide rebuke in response.

Republicans have packed the Supreme Court. To fix it, and heal our democracy, it’s time to pack it back. More justices means more diversity of thought and more representation for the American people. The nine-member standard, after all, is hardly a constitutional principle, having been enacted by law, not by constitutional amendment, in 1869. Liberals could even argue, in their appointment of more justices, that this statute was as unconstitutional as the “Tenure of Office Act” passed just two years prior — a similar legal limit on constitutionally granted appointment powers, later overturned by SCOTUS.

“You are here.” Former President Trump, a convicted felon facing a litany of other charges, many of which include more than a shadow of contempt for democracy and incitement of political violence, may once again become president. Under the current Supreme Court’s immunity framework, he could effectively do as he pleases with the full power of the Executive Branch; Democrats and his so-called “RINO” (Republican in name only) enemies, beware. And while this settles in, don’t count on your personal rights and freedoms to stick around forever. This can be fixed, but Democrats need the political will to fix it. 

Against (Granahan):

It is easy to focus on recent decisions made by the Supreme Court that we do not like, be they challenges to reproductive rights, administrative regulations or presidential responsibility. However, the independent judiciary, regardless of whether it aligns with popular opinion, has endured since the Supreme Court was first established. It may not be pretty, but the independent judiciary is not an institution America can afford to give up.

While there is no provision in the Constitution that explicitly sets a maximum number of justices on the Supreme Court, the concept of an independent judiciary within the federal government has a history that predates the creation of the Supreme Court itself. In “Federalist No. 78,” published in 1788, Alexander Hamilton wrote that the “complete independence of the courts of justice is peculiarly essential.” Prior to the rise of American federalism, the judiciary was largely seen as an arm of the executive, particularly in the United Kingdom, where His Majesty’s Courts and Tribunals Service operates as an agency under the authority of the prime minister to this day. But in the United States, the Founding Fathers (correctly) recognized the dangers of creating a judiciary that did not exercise separate powers from the executive branch.

The Supreme Court has not always had exactly nine justices, but the nine-justice precedent has lasted for over 150 years; this status quo dates back to the Judiciary Act of 1869, passed into law during the Grant administration. Since 1869, the Supreme Court has taken diametrically opposed positions on the same issues plenty of times. Race-based segregation was upheld in 1896, before being struck down in 1954. The right of a defendant to have legal counsel was found to not apply to states in 1942, until it did in 1963. And within the span of seventeen years, laws banning homosexual acts were found to be acceptable in 1986, before being overturned in 2003. This isn’t to say that all of these decisions were legally or morally sound — history has shown that many were far from that. But for every Supreme Court decision that a large number of Americans disagree with, there will always be an opportunity for reversal, even when the number of justices remains at nine.

Even during the particularly controversial Roberts Court, including after former President Donald Trump’s three appointments, the Supreme Court has made decisions that have changed America for the better. In 2019, the Court blocked the state of Indiana’s seizure of Tyson Timbs’ personal vehicle without due process following his drug possession arrest, allowing him to turn his life around by commuting to his new workplace. In 2020, the Court found that the Civil Rights Act of 1964 protects LGBTQ+ individuals from workplace discrimination on the basis of sexual orientation or gender identity. Also in 2020, the Court dismissed a lawsuit by Texas Attorney General Ken Paxton seeking to invalidate the results of the 2020 presidential election, weakening former President Trump’s attempts to overturn his loss in the election. And in 2024, the Court upheld the federal government’s ability to prohibit perpetrators of domestic violence from owning firearms. The Roberts Court is far from perfect, but the independent judiciary has outlived far less hopeful times before.

The Great Depression was one such time, and it saw a notoriously indignant Supreme Court repeatedly overturn much of the progress that President Franklin Delano Roosevelt was making on the New Deal to help America recover from the global economic crisis. Fed up with the hampering of his efforts, President Roosevelt floated the Judicial Procedures Reform Bill of 1937. This law would have allowed the president to appoint up to six additional justices, bringing the total number of Supreme Court justices to fifteen. Justice Louis Brandeis, despite his avowed progressivism and support for the New Deal, slammed this court-packing proposal as a politically motivated attack on the independent judiciary in a letter co-authored with Chief Justice Charles E. Hughes. Roosevelt’s court-packing scheme was abandoned shortly thereafter, but the visceral reaction it prompted is enough of a demonstration of why court-packing proposals should not be entertained.

In his concurrence in the 1989 Supreme Court case of Texas v. Johnson, Justice Anthony Kennedy stated: “The hard fact is that sometimes we must make decisions we do not like.” In the same vein, we as citizens must also accept decisions that we do not like, because the alternative is far more dangerous. Herein lies the reason why President Joe Biden, who has been slighted on several occasions by the Roberts Court, nevertheless opposes court-packing. In his words, packing the Supreme Court would “politicize it maybe forever in a way that’s not healthy.” If nothing else, we must consider that court-packing can also be utilized by opponents of American democracy. Should President Trump be elected once again in 2024 — a possibility that is, for all intents and purposes, a coin toss — he would be the one packing the Supreme Court. And while drastic changes can occur in just a couple of decades on a nine-justice Supreme Court, it is my belief that the same would not be possible under a Supreme Court with twelve Republican-appointed justices and three Democratic-appointed justices.